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United States Court of Appeals for the Federal Circuit ______________________ UNITED STATES CAPITOL POLICE, Petitioner v. OFFICE OF CONGRESSIONAL WORKPLACE RIGHTS, Cross-Applicant FRATERNAL ORDER OF POLICE, UNITED STATES CAPITOL POLICE LABOR COMMITTEE, Intervenor ______________________ 2022-1983, 2022-2222 ______________________ Petition for review and cross-application for enforce- ment of a decision of the Board of Directors of the Office of Congressional Workplace Rights in No. 20-LMR-01 (CA). ______________________ Decided: July 31, 2024 ______________________ PAUL FRANCIS ENZINNA, Ellerman Enzinna Levy PLLC, Washington, DC, argued for petitioner. Also represented by MICHAEL NATHANIEL LEVY; KELLY MARISSA SCINDIAN, Office of Employment Counsel, United States Capitol Po- lice, Washington, DC.

JOHN MICKLEY, Office of Congressional Workplace Case: 22-1983 Document: 83 Page: 2 Filed: 07/31/2024

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Rights, Washington, DC, argued for cross-applicant. Also represented by JOHN D. UELMEN.

MEGAN KATHLEEN MECHAK, McGillivary Steele Elkin LLP, Washington, DC, argued for intervenor. ______________________ Before PROST, HUGHES, and STOLL, Circuit Judges.

HUGHES, Circuit Judge.

The United States Capitol Police appeals the Office of Congressional Workplace Rights Board of Directors’ deci- sion holding, on summary judgment, that the United States Capitol Police had committed an unfair labor prac- tice. The Fraternal Order of Police, United States Capitol Police Labor Committee intervened. Because there are gen- uine issues of material fact regarding notice, we reverse the grant of summary judgment and remand for further pro- ceedings.

I We begin by explaining the applicable legal framework before turning to the facts and procedural history of this appeal.

A The Congressional Accountability Act of 1995 (CAA) (codified at 2 U.S.C. §§ 1301–1438) provides “certain legis- lative branch employees with some of the same collective bargaining rights as those enjoyed under other statutes by certain executive branch employees.” U.S. Capitol Police v. Off. of Compliance, 908 F.3d 776, 781 (Fed. Cir. 2018). The CAA accomplishes this by incorporating many provisions of the Federal Service Labor-Management Relations Stat- ute (FSLMRS) (codified at 5 U.S.C. §§ 7101–35).

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regarding ‘conditions of employment,’ . . . which include ‘personnel policies, practices, and matters, whether estab- lished by rule, regulation, or otherwise, affecting working conditions,’ . . . .” Nat’l Treasury Emps. Union v. FLRA, 745 F.3d 1219, 1221 (D.C. Cir. 2014) (citing 5 U.S.C. §§ 7101(2); 7103(a)(12), (14); 7114(a)(4), (b)). The Federal Labor Rela- tions Authority (FLRA) has understood the good-faith bar- gaining requirement to require an agency to provide its employees with “notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain” unless the change will only have a de minimis effect on the condition of employment. Id. (quoting U.S. Dep’t of Air Force, Air Force Material Command, Space & Missile Sys. Ctr., Detachment 12, Kirtland Air Force Base, N.M., 64 F.L.R.A. 166, 173 (2009)).

Under 5 U.S.C. § 7106(a), an agency has certain statu- tory management rights, subject to the limitations in sub- section (b). See, e.g., U.S. Capitol Police, 908 F.3d at 782.

An agency generally has “the right to control its internal organization, the number of employees, and work assign- ments . . . .” Nat’l Treasury Emps. Union, 745 F.3d at 1221.

An agency also has the right “to take whatever actions may be necessary to carry out the agency mission during emer- gencies.” 5 U.S.C. § 7106(a)(2)(D). An agency is not re- quired to bargain over its exercise of its management rights. See Nat’l Ass’n of Gov’t Emps., Local R5-136 v. FLRA, 363 F.3d 468, 471–72 (D.C. Cir. 2004) (interpreting FSLMRS). Nonetheless, labor organizations can negotiate, for example, “procedures which management officials of the agency will observe in exercising any authority under this section” and “appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.” 5 U.S.C. § 7106(b). This is referred to as “impact and implementa- tion” bargaining. See Nat’l Treasury Emps. Union v. FLRA, 414 F.3d 50, 53 (D.C. Cir. 2005). Therefore, “[a]lthough an agency is not required to bargain over its management Case: 22-1983 Document: 83 Page: 4 Filed: 07/31/2024

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rights, . . . it must negotiate about the impact and imple- mentation of its exercise of those rights.” Nat’l Treasury Emps. Union, 745 F.3d at 1221.

An agency that does not comply with applicable bar- gaining procedures may have committed an unfair labor practice in violation of the FSLMRS. Section 7116 of the FSLMRS lists unfair labor practices. See 5 U.S.C. § 7116(a). In particular, an agency commits an unfair labor practice where it: “(1) . . . interfere[s] with, restrain[s], or coerce[s] any employee in the exercise by the employee of any right under this chapter; . . . (5) . . . refuse[s] to consult or negotiate in good faith with a labor organization as re- quired by this chapter; [or] . . . (8) . . . otherwise fail[s] or refuse[s] to comply with any provision of this chapter.” Id. B The United States Capitol Police (USCP) is a legisla- tive-branch law enforcement agency, subject to the CAA, charged with “secur[ing] and protect[ing] the Congress and the U.S. Capitol 24 hours a day, 365 days a year to ensure the continuity of our representational government.”

J.A. 457; see also 2 U.S.C. § 1901. The USCP’s officers are represented by the Fraternal Order of Police, District of Co- lumbia Lodge No. 1 (Union), pursuant to a collective bar- gaining agreement (CBA). J.A. 3; J.A. 49–152 (copy of the CBA).

Subsection 8.02 of the CBA addresses procedures for bargaining over the impact and implementation of any de- partmental change in conditions of employment. J.A. 71. In particular, the USCP must “notify the Union’s Chairman or other designated representative of the proposed or an- ticipated change, in writing and as far in advance as possi- ble, but generally not later than twenty-one (21) days before implementation.” J.A. 71. Then, if the Union “wishes to negotiate on the decision,” it has fourteen days to inform the USCP and “disclose its specific proposals for negotia- tion to the proposed changes.” J.A. 71. Then, the Union and Case: 22-1983 Document: 83 Page: 5 Filed: 07/31/2024

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the USCP will “meet to negotiate on negotiable aspects of the Union’s proposal,” and once an agreement is reached “on any impact and implementation aspects of the decision, the Department will implement the change in accordance with the terms agreed upon.” J.A. 71. If the parties do not come to an agreement, Subsection 8.03 provides for further procedures. J.A. 72.

On March 20, 2020, faced with the COVID-19 pan- demic, USCP Chief of Police Steven Sund notified Union Chairman Gus Papathanasiou that the USCP was sus- pending the CBA under Article 8, Subsection 8.04, and 5 U.S.C. § 7106(a)(2)(D), effective immediately. 1 J.A. 3–4.

Mr. Papathanasiou, while recognizing that “the present circumstances are ‘exceptional,’” expressed the Union’s dis- agreement with the Chief of Police’s decision. J.A. 4. The Union disputed the USCP’s authority to unilaterally sus- pend the entire CBA under Subsection 8.04 of the CBA and 5 U.S.C. § 7106(a)(2)(D). See J.A. 687–88; see also J.A. 8–9.

The Union maintained that Subsection 8.02 provided that in the case of “exceptional or unforeseen circumstances,” the 21-day notice requirement may be shortened, and this would be sufficient for the USCP to respond to the pan- demic. J.A. 453. Nonetheless, the USCP suspended the en- tire CBA until July 15, 2020, when “the USCP sent a letter to the [Union] advising that it was reinstating certain

“Emergency situations include, but are not limited to, riots, demonstrations, fires, floods and other disasters/events.”

J.A. 72.

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articles of the CBA.” J.A. 5–6. Other articles were rein- stated at different points over the following months. See J.A. 6. 2 While the CBA was suspended, the USCP “evaluate[d] far reaching changes to its operations and administrative support” in response to the COVID-19 pandemic. J.A. 444 (¶ 10). The USCP, in making these changes, sought to “lessen the likelihood that employees would contract COVID-19 in the workplace by mandating social distanc- ing,” ensuring that employees who may have COVID-19 were “kept out of the workplace,” suspending any activities or the use of any facilities that may “increase the risk of exposure to the virus,” providing its employees “timely and accurate information” about, among other things, “changes to the Department’s operations or administrative func- tions,” furnishing employees with the necessary supplies and protective equipment, and conducting certain activi- ties remotely. J.A. 444–45 (¶¶ 10–15).

These measures were outlined in a May 7, 2020, letter to Congressman Steny H. Hoyer, referred to as the “Hoyer Letter.” J.A. 445 (¶ 16); J.A. 165–73 (copy of the Hoyer Let- ter). In that letter, the USCP explained that it “has imple- mented a comprehensive and aggressive COVID-19 response plan that affects nearly every aspect of the [USCP’s] operations, administrative functions, safety pro- tocols, and facilities management.” J.A. 165. The letter goes on to list several pages of changes in a bulleted list, describing them as “some, but not all, of the significant changes the [USCP] implemented.” J.A. 165–69. Later in

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the Hoyer Letter, the USCP recognized its obligation under the CBA to notify the Union of changes in working condi- tions and accepted that “[m]ost of the changes described [in the bulleted list] likely are changes in working conditions.”

J.A. 170.

In the Hoyer Letter, the USCP explained that suspend- ing the entire CBA, including the notice provisions, allowed it to quickly adapt its operations in view of the ongoing pan- demic. See J.A. 170 (“In a pandemic situation when indi- viduals may become symptomatic after 14 days, the Department cannot wait months, or longer, to implement changes intended to maintain the health of its workforce.”).

The Union alleges it did not receive a copy of the Hoyer Letter or otherwise have notice of the changes detailed in the letter until early May 2020. See, e.g., Cross-Applicant’s Br. 22–25; J.A. 401–02 (¶ 7). The Union did not formally receive a copy of the letter from the USCP until June 8, 2020. J.A. 401–02 (¶ 7).

By contrast, after the CBA was suspended, Mr. Sund attested that he “had email, telephone, and text communi- cations with [Union] executive board members, including Chairman Papathanasiou, and Vice Chairmans Keith McFaden and Vincent Summers” “[n]early every day.” J.A.

445 (¶ 17). Therefore, according to the USCP, the Union had notice of the changes outlined in the Hoyer Letter. See J.A. 445 (¶ 17) (“These communications concerned many of the changes the [USCP] implemented as well as Union sug- gestions of steps the [USCP] could take.”); see also J.A. 447 (¶ 22). While the CBA was suspended in early 2020, Mr. Sund “received only two communications from the Un- ion regarding specific proposals submitted in response to changes in condition of bargaining unit members’ employ- ment,” one of which Mr. Sund agreed to, and the other which was denied “because the proposals were not negotia- ble.” J.A. 446–47 (¶¶ 18–21). The USCP maintains that Case: 22-1983 Document: 83 Page: 8 Filed: 07/31/2024

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this shows that the Union did have sufficient notice. See, e.g., Pet’r’s Reply Br. 2 n.2.

C Three days after the USCP notified the Union that the CBA was suspended, on March 23, 2020, the Union filed an unfair labor practice charge with the Office of Congres- sional Workplace Rights’ General Counsel (General Coun- sel). J.A. 4. The Union alleged that the USCP violated § 7116(a)(1), (5), and (8) of the FSLMRS when it “failed to provide proper notice, failed to negotiate the USCP’s emer- gency response plan to COVID-19, and unilaterally sus- pended the entire CBA.” J.A. 4; see also J.A. 21–22 (¶ 7).

In November 2020, the General Counsel filed a com- plaint against the USCP, alleging the USCP committed un- fair labor practices in responding to the COVID-19 pandemic. J.A. 20–30 (Complaint); see also J.A. 6. After a pretrial conference, the Office of Congressional Workplace Rights (OCWR) hearing officer “determined that no genu- ine issue exists as to any material fact in this case” and directed the parties to file cross-motions for summary judg- ment. J.A. 193–94.

On January 29, 2021, the hearing officer granted sum- mary judgment for the General Counsel and the Union and denied the USCP’s cross-motion for summary judgment.

J.A. 696–97 (hearing officer decision). The hearing officer held that the USCP committed unfair labor practices in vi- olation of § 7116(a)(1), (5), and (8). J.A. 697 (¶¶ 2–4). Par- ticularly, the USCP committed an unfair labor practice when it (1) suspended the entire CBA; (2) did not reinstate provisions of the CBA that “did not interfere with carrying out its mission”; and (3) did not bargain with the Union “over changes to conditions of employment that it unilater- ally implemented after suspending the parties’ CBA.”

J.A. 697 (¶¶ 2–4). In addition, the hearing officer concluded that the USCP committed an unfair labor practice in viola- tion of § 7116(a)(1) and (8) “when it suspended and refused Case: 22-1983 Document: 83 Page: 9 Filed: 07/31/2024

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to reinstate the grievance and arbitration provisions con- tained in Article 32 of the parties’ CBA . . . .” J.A. 697 (¶ 5).

The hearing officer thereafter ordered the USCP to “cease and desist and to take certain affirmative action designed to effectuate the policies of the CAA.” J.A. 698–99.

D The USCP appealed to the OCWR Board of Directors (Board). See J.A. 2–19. On April 4, 2022, the Board af- firmed in part the portion of the hearing officer’s decision finding “that the USCP committed an unfair labor practice when it failed to engage in good faith bargaining after its suspension of the CBA.” J.A. 7–8. The Board concluded that “the undisputed record establishes that the USCP failed to give the Union specific and definitive notice of the USCP’s unilateral changes in conditions of employment implemented as part of its COVID-19 response plan, in- cluding the scope and nature of those changes and the cer- tainty and timing of those changes . . . .” J.A. 13, 15. Since the Board concluded that its determination that the USCP failed to give sufficient notice was “adequate to sustain the [h]earing [o]fficer’s conclusion that the USCP violated the FSLMRS,” the Board did “not reach the [h]earing [o]fficer’s” additional “grounds for reaching this conclu- sion.” J.A. 13–14. The Board adopted the hearing officer’s “findings and conclusions only to the extent consistent with this Decision.” J.A. 13–14. The Board also sustained the hearing officer’s order on remedial action. J.A. 14–15.

E The USCP timely filed the present appeal. We have ju- risdiction over any proceeding commenced under 2 U.S.C. § 1351(c)(3) by the General Counsel and may “set aside, suspend (in whole or in part), . . . determine the validity of, or otherwise review the decision of the Board.” 2 U.S.C. § 1407(a)(1)(D).

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II Motions for summary judgment before the OCWR are governed by the same requirements as motions for sum- mary judgment under Federal Rule of Civil Procedure 56.

See Dep’t of V.A., V.A. Med. Ctr., Nashville, Tenn., AFGE Local 2400, 50 F.L.R.A. 220, 222 (1995); OCWR Proc. Rules § 5.03(d). Therefore, summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judg- ment as a matter of law.” Fed. R. Civ. P. 56.

We review the Board’s grant of summary judgment de novo. Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed. Cir. 2003) (“Summary judgment, however, is, of course, in all respects reviewed de novo.”); see also Leggett v. Off. of Cong. Workplace Rts., 2023 WL 1459276, at *1 n.1 (Fed. Cir. Feb. 2, 2023) (reviewing Board’s grant of sum- mary judgment de novo). When evaluating whether a mo- vant is entitled to summary judgment, we “believe[]” the evidence of the non-movant and draw “all justifiable infer- ences” in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III On appeal, the USCP argues that the General Counsel and the Union failed to prove they were entitled to sum- mary judgment, see, e.g., Pet’r’s Br. 18, 30–31, and asks us to “set aside the Board’s decision,” Pet’r’s Br. 31; see also Pet’r’s Reply Br. 14 (same). The General Counsel and the Union defend the Board’s decision and ask us to enforce the Board’s remedial order. Cross-Applicant’s Br. 37–39; Inter- venor’s Br. 19. Reviewing de novo, we conclude that genu- ine issues of material fact preclude the grant of summary judgment in the General Counsel and Union’s favor be- cause they have not established that the USCP failed to bargain in good faith with the Union over any changes in conditions of employment listed in the Hoyer Letter.

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We begin by agreeing with the USCP that the Board erred in granting the General Counsel and the Union’s mo- tions for summary judgment without deciding which changes, listed in the Hoyer Letter, were changes in condi- tions of employment. Without a determination of which changes were changes in conditions of employment subject to bargaining and when those changes were made, we can- not evaluate whether notice of that change was necessary, and if so, whether the Union was provided with adequate notice. The Board merely listed the changes at the end of its decision, describing them as “35 items regarding opera- tional changes impacting bargaining unit employees.” 3 J.A. 5, 11, 16–19. And as discussed at oral argument, not all of the changes seem to be properly considered as changes in conditions of employment. See Oral Arg. at 35:06–40:14 (General Counsel), 58:36–59:27 (USCP). For example, “develop[ing] enhanced cleaning schedules for . . . facilities[] . . . most frequented by [USCP] officers,” is not obviously a change in the conditions of employment.

J.A. 168. Reviewing de novo, and drawing all inferences in the USCP’s favor, as we must, there are genuine disputes of material fact regarding which changes, if any, triggered the USCP’s duty to bargain in good faith.

Turning to notice, the USCP argues that the General Counsel and the Union failed to meet their burden on sum- mary judgment to show that the Union had no notice of the changes described in the Hoyer Letter. See, e.g., Pet’r’s Br.

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19–23; Pet’r’s Reply Br. 3–6. The General Counsel and the Union respond that the Union never received adequate no- tice of the changes in conditions of employment and argue that the USCP has failed to bring forth affirmative evi- dence to support its position. See, e.g., Cross-Applicant’s Br. 18–21, 26–32; Intervenor’s Br. 12–14. Here, too, there are genuine issues of material fact regarding whether the Union received notice of any changes in conditions of em- ployment and had an opportunity to bargain over any as- pects of the change that are “within the duty to bargain.”

See Nat’l Treasury Emps. Union, 745 F.3d at 1221 (citation omitted).

Generally, notice must be provided “prior to imple- menting a change in conditions of employment.” See id. (ci- tation omitted). However, where an agency is forced to act during an emergency, the FLRA has determined that post- implementation notice can be sufficient. See Dep’t of Home- land Sec. Border & Transp. Directorate, Nat’l Treasury Emps. Union, 61 F.L.R.A. 272, 292 (2005) (“Requiring pre- implementation bargaining would effectively nullify sec- tion 7106(a)(2)(D) with respect to emergencies that could not be anticipated in advance.”).

Here, while there is evidence that the Union did not receive the Hoyer Letter and the list of changes it details until May 7, 2020, see J.A. 401 (¶ 7), there is also evidence indicating that the USCP and the Union regularly commu- nicated about the USCP’s COVID-19 response, see, e.g., J.A. 169; J.A. 445 (¶ 17); J.A. 525–26 (¶ 35). In addition, the Union submitted two bargaining proposals, which sug- gests that at least some changes were communicated to the Union. J.A. 446 (¶¶ 18–20); J.A. 470–71 (Union demand to bargain over the USCP’s failure to provide the names of Union employees who tested positive for COVID-19); J.A.

473–75 (USCP response); J.A. 467–68 (email exchange wherein Union Chairman requested extending the period during which a bargaining unit employee could appeal dis- ciplinary action and the USCP agreed). Drawing all Case: 22-1983 Document: 83 Page: 13 Filed: 07/31/2024

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inferences in the USCP’s favor, there is sufficient evidence of notice to preclude summary judgment.

Because genuine issues of material fact preclude the grant of summary judgment, the Board erred in affirming in part the hearing officer’s decision to grant summary judgment. As such, we decline to enforce the Board’s order, as requested by the General Counsel and the Union. See Cross-Applicant’s Br. 36–38; Intervenor’s Br. 19.

IV We conclude that the Board of Directors erred in af- firming in part the hearing officer’s grant of summary judg- ment in favor of the General Counsel and the Union.

Because we are reversing the grant of summary judgment and remanding for further proceedings, we need not con- sider the USCP’s arguments regarding additional errors the Board allegedly committed in affirming the grant of the motions.

We reverse and remand for further proceedings con- sistent with this opinion.

REVERSED AND REMANDED COSTS Costs to the USCP.